Congress might,by resolution,determine that the constitution was not republican,and direct the State to form a new one.And suppose that the State should refuse to do so,on the ground that it had already complied with the requisitions of the Federal Constitution in that respect?Could Congress direct an issue to try the question at the bar of the Supreme Court?This would,indeed,be an odd way of settling the rights of nations,and determining the extent of their powers!Besides,who would be parties to the issue?at whose suit should the State be summoned to appear and answer?Not at that of the United States,because a State cannot be sued by the United States,in a federal court;not at that of any other State,nor of any individual citizen,because they are not concerned in the question.
It is obvious that the case does not present proper subject matter for judicial investigation;and even if it did,that no parties could be found authorized to present the issue.
Again,Congress has authority "to provide for organizing,arming and disciplining the militia,and for governing such part of them as may be employed in the service of the United States;reserving to the States,respectively,the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress."Suppose that Congress should usurp the right to appoint the militia officers,or the State should insist on training the militia in their own way,and not "according to the discipline prescribed by Congress."How could this matter be brought before the Supreme Court?And even if properly brought there,how could its sentence be executed?
Again,suppose that Congress should enact that all the slaves of the country should immediately be free.This is certainly not impossible,and I fear not even improbable,although it would be the grossest and most palpable violation of the rights of the slaveholder.This would certainly produce the most direct conflict between the State and Federal Governments.
It would involve a mere question of political power ?the question whether the act of Congress forbidding slavery,or the laws and Constitution of the State allowing it,should prevail.And yet it is manifest that it presents no subject matter proper for judicial decision,and that the parties to it could not be convened before the Supreme Court.
These examples are sufficient to show that there is a large class of "constitutional controversies,"which could not possibly be brought under the cognizance of any judicial tribunal,and still less under that of the federal courts.As to these cases,therefore,each State must,of necessity,for the reasons already stated,be its own "final judge or interpreter."
They involve the mere question of political power,as between the State and Federal Governments;and the fact that they are clearly withheld from the jurisdiction of the Supreme Court,goes far to prove that the States in framing the Constitution did not design to submit to that court any question of the like kind,in whatever form or between whatever parties it might arise,except so far only as the parties themselves were concerned.
Judge Story himself does not contend that the Supreme Court is the "final judge or interpreter"in all cases whatsoever;he,of course,admits that no court can decide any question which is not susceptible of a proper form for judicial enquiry.But he contends that,in all cases of which the Supreme Court can take cognizance,its decisions are final,and absolutely binding and conclusive in all respects,to all purposes,and against the States and their people.It is this sweeping conclusion which it has been my object to disprove.I can see in the federal courts nothing more than the ordinary functions of the judiciary in every country.It is their proper province to interpret the laws;but their decisions are not binding,except between the parties litigant and their privies.So far as they may claim the force of authority,they are not conclusive,even upon those who pronounce them,and certainly are not so beyond the sphere of their own government.Although the Judiciary may,and frequently do,enlarge or contract the powers of their own governments,as generally understood,yet they can never enlarge or contract those of other governments,for the simple reason that other governments are not bound by their decisions.And so in our own systems.
There is no case in which a judicial question can arise,before a federal court,between a State and the Federal Government.Upon what principle,then,are the States bound by the decisions of the federal judiciary?Upon no principle,certainly,except that,as to certain subjects,they have agreed to be so bound.But this agreement they made in their character of Sovereign States,not with the Federal Government,but with one another.
As sovereign States,they alone are to determine the nature and extent of that agreement,and,of course,they are to determine whether or not they have given the federal courts authority to bind them in any given case.This principle has frequently been asserted by the States,and always successfully.24
